In a reversal that has outraged environmentalists, the U.S. Fish and Wildlife Service (FWS) announced it will not penalize a Southern California wind operator if its turbines kill or injure one California condor. One of the world’s most critically endangered animals with fewer than 250 birds in the wild, the condor’s range in the Tehachapi Mountains is being encroached on by intensive wind turbine development.

FWS biologist Ray Bransfield told ReWire that FWS has completed its Biological Opinion (BiOp) on condors for Google and Citicorp’s Alta East project, which would be built and operated by wind developer Terra-Gen. Occupying 2,592 acres, mostly on public lands, near the intersection of state routes 14 and 58 in Kern County, Alta East would generate a maximum of 318 megawatts of electrical power with 106 wind turbines, each with 190-foot-long blades.

FWS’s BiOp for Alta East includes an “incidental take statement” that in effect allows one “lethal take” of a California condor. “Incidental take” of a protected species is a term of art covering any kind of injury, harassment or disturbance, or even habitat damage that a project causes inadvertently. “Lethal take” is when the species in question dies. If the Bureau of Land Management (BLM) approves the project, FWS would require formal re-review of the project’s impact on condors if a single condor is killed over the 30-year operating life of the facility.

According to FWS, other wind developers are welcome to apply for similar permits. “This is the first time we’ve authorized incidental takes of California condors – and we’re approaching them very cautiously,” said FWS Director Dan Ashe in an interview with Louis Sahagun of the Los Angeles Times.

According to FWS press spokesperson Stephanie Weagley, the BiOp was issued approximately a week ago and delivered to the BLM, which is in the process of determining whether to approve Alta East. Standard practice dictates that BiOps for a project are made public when the lead agency – the BLM, in this case – issues a Record Of Decision on the project. Attempts by ReWire to obtain an advance copy of the Alta East condor BiOp have so far been unsuccessful.

Condors are especially threatened by the new generation of wind turbines because they fly slowly, their 9-foot wingspans making them somewhat slow to maneuver. They tend to soar while watching the ground, searching for activity of other scavengers. This habit makes them vulnerable to injury from blade tips approaching from above, often at speeds exceeding 150 miles per hour.

Alta East has come under heavy scrutiny for its threat to condors in the east Tehachapis. It’s far from the only wind facility that poses such a threat: the area has seen startling growth in wind installations in the last four years, many of those installations every bit as much a threat to California’s largest bird. According to Bransfield, the Alta East facility is the first to come up for incidental take consideration because it occupies BLM land. Asked in email whether this pending incidental take permit offered a precedent for neighboring facilities, Bransfield told ReWire:

Our biological opinion (and the incidental take statement included in the biological opinion) are specific to this project. We would need to evaluate any future projects on their own merits; therefore, I do not have an answer to that question. One thing to keep in mind, though, is that numerous wind projects are already in operation in this area; none of them applied for an incidental take permit from the Service; also, none of them are on Federal land, so this is the first to undergo consultation.

Of the 132 free-flying condors in California as of March 2013, nearly half – 65 birds – live in the Tehachapis, well within an easy day’s flight of the burgeoning wind developments in the vicinity of Alta East. And according to telemetry from the transmitters worn by many of the birds, they’re moving right up against the Tehachapi Wind Energy Area – and in many cases flying across it.

Recent condor GPS locations mapped near wind development areas in the Western Mojave | Map: FWS

The revelation of the pending take permit caught many wildlife protection activists by surprise, and several told ReWire that it was difficult to offer a measured response on behalf of their organizations without access to the text of the BiOp. But the reaction of Center for Biological Diversity attorney Adam Keats quoted in Friday’s Times article aptly summarized most of the sentiment ReWire found among activists: “This is a sad day for the U.S. Fish and Wildlife Service,” Keats told the Times. “We’re talking about perhaps one of the most endangered species on the planet, let alone in this country.”

“It’s premature and inappropriate,” said condor expert Sophie Osborn, wildlife program director for the Wyoming Outdoor Council and author of “Condors in Canyon Country: The Return of the California Condor to the Grand Canyon Region.” Osborn, who managed the Peregrine Fund’s involvement with the Grand Canyon condor reintroduction for many years, told ReWire that the incidental take permit flies in the face of what we know about how to help birds survive wind energy development. “Proper siting means finding out which areas pose less threat to birds. It means not putting turbines in high use areas, not allowing development in places that have heavy wildlife traffic.”

“This just seems like a recipe for losing condors,” she added.

Osborn also took issue with a statement by Dan Ashe quoted in Louis Sahagun’s Los Angeles Times piece, in which the FWS chief said “The good news is that we have an expanding population of condors, which are also expanding their range.”

“The reason we have an expanding population is that we’re breeding and releasing condors,” said Osborn. “That doesn’t offer an accurate picture of how they’re doing once they’re released.”

If a condor is killed at Alta East during that 30-year period, the BLM will have to do what’s known in the endangered species business as “reinitiating formal consultation” – essentially restarting the process by which FWS determines whether a project will jeopardize the existence of an endangered species.

That’s a reassuring-sounding prospect: FWS will assess whether a project that has killed an endangered animal poses further threat to the species. The process is often less reassuring in practice than it is in theory. Endangered species advocates were hoping for a “jeopardy” finding when solar developer BrightSource started finding hundreds more federally threatened desert tortoises on the site of its Ivanpah Solar Electric Generating System than were forecast in that project’s BiOp. The original BiOp and take permit allowed BrightSource to kill, harm, harass, or disturb no more than 40 tortoises. Once it was clear there were a lot more tortoises than that onsite, BLM estimated as many as 2,862 tortoises (including eggs) could be harmed by the project. Despite the 70-fold increase in potential “takes,” FWS merely required a few changes to the project’s tortoise relocation plan and issued a revised BiOp that allowed construction to proceed.

Reviewing a project’s impact on condors after a single death may seem fairly stringent by comparison to the Ivanpah tortoise example, but compared to a year in prison and a fine of $100,000 – the existing penalties under the Endangered Species Act for killing a condor – it’s definitely getting off easy. And the number of remaining tortoises in the Ivanpah Valley, as beleaguered as they are, is many times higher than the entire population of California condors worldwide.

This is an abrupt about-face for FWS, whose representatives were stating as recently as last year that issuing lethal take permits for the California condor to wind developers – or anyone – was out of the question. In a 2011 letter regarding Alta East sent to Jacqueline Kitchen of the Kern County Planning and Community Development Department – and included as a public comment in the project’s Final Environmental Impact Statement – FWS’s Assistant Field Supervisor Carl Benz said that “we consider avoidance of mortality of California condors to be the only acceptable conservation strategy at this point in time.” That was the same point in time in which FWS was rebuking Kern County for downplaying the existence of condors on the site of a different proposed wind project. In a letter to the county’s Board of Supervisors, Diane Noda – Field Supervisor of the FWS Ventura office – warned the county that careless approval of enXco’s 350-megawatt Catalina wind project could land the county in hot water with regard to illegal take of condors, adding “We cannot envision a situation where we would permit the lethal take of California condors.”

Based on best available information for the California condor, it is anticipated that no lethal take would be authorized for condor, but that the DRECP would promote conservation of the species.

So what prompted this volte-face on FWS’s part? It’s hard to tell without looking at the Biological Opinion, which has not so far been made publicly accessible. Stephanie Weagley told ReWire that a commitment by Terra-Gen to implement a condor warning system played a role in FWS writing the first-ever incidental take statement for California condors.

“These measures include… a system to detect condors flying in the vicinity of the project [and] curtailment of operation prior to any bird entering the area of the wind turbines,” Weagley told ReWire.

What this likely means, given the flaws inherent in standard detection tech such as bird radar, is that Terra-Gen has agreed to use a system that will detect the radio transmitters worn by many condors and slow their turbines when the alarm signals the birds’ approach.

Those transmitters are worn by many condors. They are not worn by every condor. A double-digit percentage of condors in California may be without transmitters, and those with them may stop signaling due to equipment failure. “Transmitters often have failed batteries,” Sophie Osborn points out. “They fall off. It’s a hell of a lot of work to capture condors to attach new transmitters, especially if the condors in question aren’t habituated to food subsidies. It can take weeks or months to recapture a condor whose transmitter has failed, or to capture a fledgling that’s never had one attached. It takes a big commitment of people on the ground to do the work.”

Condors’ social behavior may offer some level of “herd immunity” to windmill strikes in that radio-silent condors will often be accompanying those with transmitters. But that’s not by any means a certainty. Eventually, Terra-Gen will have to find some other way of detecting condors, and no reliable way other than constant live observation really exists.

FWS’s Stephanie Weagley points out that this reality is in part what drove the Alta East BiOp’s findings. “Because the detection system is not fool-proof,” said Weagley, “the Service’s biological opinion on the proposed action anticipates the lethal take of a single condor over the 30 year life of the project.”

If condors do move into the area in increasing numbers, that poses another problem with mitigation through detection. Wind turbine operators are in business to sell power. If they’re obliged to cut their output drastically every time a condor flies by, and if condors start flying by more than a few days a year, that cuts into profits, and into investors’ income, and into the creditworthiness of the operator. The temptation to err on the side of threat to condors will grow with the local condor population.

And that threat may involve a single condor only rarely. Condors are intensely social animals – one biologist has called them “primates with feathers.” The birds tend to gather in huge flocks at a carcass, and they can assemble those huge flocks quickly, as shown in these camera trap images caught just a few moments apart:

Photo: FWS

Photo: FWS

It may turn out to be hard to kill only one California condor by accident.

Fish and Wildlife Director Daniel Ashe said the decision reflects a difficult reality. The threat of prosecution jeopardized the construction of large-scale alternative energy facilities… in the wild and windy places preferred by condors.

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